Filibuster reform

Parliamentary procedure is not about "the people" being heard

APART from the "Why We Fight" series, Frank Capra's understanding of politics was pretty lousy. Most of his films have a political vision that could best be described as medieval. In a typical Capra film, the political conflict is settled at the end when "the people" of whatever polity the film is set in, whether some salt-of-the-earth small town or the salt-of-the-earth American nation as a whole, come out and make themselves heard, voicing their gosh-darn support for the movie's salt-of-the-earth hero and his salt-of-the-earth cause. In this Mr Capra is hardly unique; this is the way politics works in standard Hollywood films. But he can fairly be accused of setting the mold, and the film that made the filibuster famous, "Mr Smith Goes to Washington", is a prime example. Interestingly, senator Jefferson Smith does not stage his filibuster in the interests of any significant public cause; he does it in order to try to clear his own name over accusations of corruption. The movie would have us believe that Mr Smith's filibuster over the ethics charges against him dominates the headlines, seizes the imaginations of his own constituents and the national public, and ultimately brings him vindication after his accuser is seized by pangs of conscience and confesses that the charges were fabricated. What has been accomplished, then, for the American people? Concretely, nothing. But the bond of sincere communion between "the people" and their simple, salt-of-the-earth representative, Mr Smith, has been reestablished, over and against all the complicated mediating institutions (parties, committees, unions, and so forth) whom Mr Capra subsumes as "the machine". This, in Mr Capra's pre-Enlightenment vision, seems to be the goal of politics: not the mediation of conflicting interests on concrete issues through negotiation followed by majority vote, but the affirmation of a bond of faith and oneness between the sovereign and the masses. The good prince was loved by his people, they rallied to him and drove out the evil regent and his minions.

In real life, the results of frequent deployment of the filibuster have been decidedely less picturesque over the past four years. Now Jeff Merkley, a Democratic senator from Oregon (like Mr Smith a newcomer to the body), wants to end the routine use of the filibuster by the Republican minority, which has virtually paralyzed the Senate. His solution is to go back to requiring a "talking filibuster" more or less like the one Mr Smith staged, rather than the implicit filibuster that has predominated since the 1960s. The Huffington Post's Ryan Grim relays a memo Mr Merkley sent to colleagues: "The talking filibuster proposes to bring the filibuster back into the Senate chamber before the American people."

If the Senate held a cloture vote to end debate, and a majority of senators voted to end debate, but not 60, the Senate would enter a period of "extended debate." In short, once the Senate has voted for additional debate, senators who feel that additional debate is necessary would need to make sure that at least one senator is on the floor presenting his or her arguments. If, at any time during the period of extended debate, no senator were present to speak to the bill, then the presiding officer of the Senate would rule that the period of extended debate is over. The Majority Leader would then schedule a simple majority cloture vote on the bill.

In short, senators who wanted to filibuster would have to make sure at least one of them was on the floor at all times, talking. Many pundits and political scientists (Jonathan Bernstein, Gregory Koger and Sarah Binder) think this won't do much to stop filibusters: it will be fairly easy for a minority to tag-team and make sure someone is on the floor speaking at all times. What it will do is slow down the work of the Senate even more, by preventing the body from moving on to other issues while anyone is staging a filibuster. But in an interview with NPR's Planet Money this week, Mr Merkley explained why he thinks forcing senators to actually drone on through the night on the Senate floor will be useful:

They have to make their case before their colleagues and before the American people. And then the American people can weigh in and say, you're a hero, because you're standing for an important principle, and that will gain momentum, if you will. Or, the American people can say you're a bomb. You're obstructing a very good bill like the DISCLOSE Act, we don't like secrecy, and how dare you. And they'll call up their senators and say, join the effort to end the debate.

This description bears no relationship to the exercise of politics as I understand it. The "American people" do not "weigh in" on whatever happens to be going on in the Senate at a given moment. There is, first of all, no "American people", waiting around like extras on the lot to cheer or boo in unison as the director commands; there are over 300 million different people in America, and the vast majority of them are not paying attention to Congress and would likely not know how to interpret it even if they were watching. Most of them do not know what the DISCLOSE Act is, and even if they did, in the unlikely event that they were to flick past C-SPAN on their cable and note that a senator was engaged in a boring rote speech or in reading King Lear, they would not know that what they were watching was an effort to block the DISCLOSE Act. Some Americans will no doubt be moved to write or call their senators based on whether a filibuster is underway, just as many already do based on that or other issues. Why would talking filibusters be significantly more motivating than other issues? If they were, why would Republicans in Congress, who have pursued their filibuster-everything strategy despite seeing their approval ratings fall into the teens, decide to change course if they were to fall a couple of points further?

The vision of politics Mr Merkley advances here comes straight out of a Frank Capra movie. I find it so odd to hear a successful elected politician talking this way that I cannot quite believe he actually means it. I suspect Mr Merkley's language here is a deliberately simplified version of the dynamic he envisions, meant to tap the sympathies of an American public that often seem sto believe politics should work the way it does in a Frank Capra movie. Even so, it's a bad simplification. You do not fix this kind of institutional design problem by building in more "appeal to the American public" buttons. The American public cannot be expected to pay attention to every issue in Congress, and when it does, its opinions will be divided and unreliable. We have a republican system of government: we elect guys like Mr Merkley to shape and pass bills, and then come back and try and get re-elected. The overuse of the filibuster and the transformation of the Senate into a supermajority-approval body are a problem of bad parliamentary design. The idea that these problems can be fixed by proclaiming "let the people decide!" is a load of romantic horse manure, and it was in 1939, too.

Some of us who are interested in filibuster reform are less concerned about minority/majority control issues and more interested in accountability. Under the current rules the filibuster process is practically anonymous. I would prefer to know which Senators are using the filibuster.

Despite its passage, I think the point here is that if a bill is filibustered several times and then approved on a 99-0 vote, what you're seeing is someone just messing with the system. What's the concern to be addressed through such a long wait? If it's honestly the fear of terrible hastily passed legislation (like the un-filibustered PATRIOT Act), weeks should be more than enough to slow things down and give the opposition the opportunity to be heard.

Get rid of the filibuster altogether. Surely, if a bill can pass a majority vote in two separate chambers and survive the possibility of an executive veto, it has surmounted enough veto points to be recognized as law. You don't need a supermajority vote in there to muck up an already very mucked up democratic process.

In some ways I think advocates of the talking filibuster need more Capra, not less. The talking filibuster creates heroes. In the movie, it was for a worthy cause but advocates want the talking filibuster to increase the profile of those they disagree with. Imagine they get their way...

Rush Limbaugh: Yesterday, Senator Tea Party Extremist bravely stood for the American people to filibuster Harry Reid's socialist bill to "feed starving children." Take a listen. [Audio clip of senator reading the Declaration of Independence] Let him know you stand with him. Donate to his campaign. Call your senators and tell them to join the fight. We need more senators with backbones like that.

Sean Hannity: Senator Tea Party Extremist is in his 6-hour in a crusade against Islamofascism. [Clip of senator reading from the Bible] Ann Coulter joins us to discuss.

Harry Reid: The Republican filibuster has halted all our activities and we have important work to do. So Senator McCain, Senator Lieberman, and I have come up with this solution that I think is fair. We're going to put this bill off for another day, cut tax rates by 20%, and double the defense budget. In exchange, Republicans are going to stop throwing french fries at us in the cafeteria.

I believe in simple majority rule but I don't like rash political reactions to fleeting public sentiment. My idea is to allow the current fillibuster-by-notice but allow the same bill to be reintroduced without amendment at subsequent sessions and it cannot be fillibustered more than twice in a row. IOW, in the third year, it comes to a vote. Note that to beat the filibuster, the bill must enjoy majority support across two congresses. If it can't manage that, it doesn't deserve to be passed.